Many probationary employees who had been reinstated—or put on paid administrative leave pending their return to work—now face a possible second separation as agencies prepare to undertake RIFs. Image: iStock.com/Douglas Rissing
By: FEDweek StaffFederal agencies no longer need to cite a performance problem when firing federal employees during their probationary periods, OPM has said in addressing an issue that became a legal sticking point in the widespread firings of probationers in February.
Even though President Trump’s new executive order on probationers requires OPM to issue implementing rules, its terms took effect immediately upon its issuance April 24, OPM said in implementing guidance on the CHCOC website.
“There is no longer a requirement that the employing agency provide a terminated probationer with the agency’s conclusions as to the inadequacies of his performance or conduct,’” as required under prior regulations, it says. “Agencies may decide not to finalize a probationer’s employment for reasons unrelated to their personal performance or conduct, such as the operational needs of the agency.”
“Thus, when terminating a probationary or trial period employee, agencies are no longer required to provide notice that his or her unsatisfactory performance or conduct is the basis for the termination, or written notice ‘specifically and in detail’ for the proposed action when the termination is based, in whole or part, on conditions arising before appointment,” it says.
The notice requirement was at the heart of several suits against the layoffs of more than 20,000 probationers, with two judges separately concluding that agencies violated that requirement by using boilerplate language that did not address individual employees’ performance. Those rulings resulted in orders requiring nearly two dozen departments and agencies to offer those employees reinstatement; those orders later were lifted by higher courts pending fuller consideration.
The trial judges had further found that OPM had ordered the layoffs even though it had no authority to do so, an issue that also remains pending in the courts.
Many probationary employees who had been reinstated—or put on paid administrative leave pending their return to work—now face a possible second separation as agencies prepare to undertake RIFs and reorganizations on a larger scale in the weeks ahead.
OPM’s guidance also expands on a requirement in the executive order saying that a probationer “bears the burden of demonstrating why their continuation in employment through the finalization of their appointment to the federal service is in the public interest.”
Says the guidance: “Employees serving a probationary or trial period should take every opportunity to demonstrate their fitness and qualifications through sustained high performance, good conduct, and meaningful contribution to their agency’s mission. However, the ultimate determination as to whether the probationary or trial period’s appointment to the Federal service will be finalized rests with the discretion of the agency, as Congress intended when it passed the CSRA,” the Civil Service Reform Act.
The guidance includes a template for agencies to use when making those decisions, using the standards in the order that they are to consider the “employee’s performance and/or conduct; the needs and interests of the agency; whether the employee’s continued employment would advance organizational goals of the agency or the government; and whether the employee’s continued employment would advance the efficiency of the federal service.”
Shutdown Meter Ticking Up a Bit
Judge Backs Suit against Firings of Probationers, but Won’t Order Reinstatements
Focus Turns to Senate on Effort to Block Trump Order against Unions
TSP Adds Detail to Upcoming Roth Conversion Feature
White House to Issue Rules on RIF, Disciplinary Policy Changes
Hill Dems Question OPM on PSHB Program After IG Slams Readiness
See also,
How Do Age and Years of Service Impact My Federal Retirement
The Best Ages for Federal Employees to Retire
